A Larimer County judge wrongly applied an unusual Colorado law when he overruled a decision by the district attorney’s office to not prosecute one participant in a multi-person brawl, the state’s second-highest court ruled last week.

Colorado is one of four states that allows judges to review prosecutors’ decisions not to charge someone suspected of committing a crime. If the judge finds the district attorney’s conclusion was arbitrary and capricious, they may order the prosecution to commence or else appoint an outside prosecutor.

In response to a complaint by the victim of an alleged assault, District Court Judge Stephen J. Jouard agreed the Eighth Judicial District Attorney’s Office had no reasonable excuse in declining to prosecute the man who threw the punch. He ordered a special prosecutor from a neighboring county to file charges.

But last week, a three-judge panel for the Court of Appeals walked back that decision. Although there was video evidence of the group fight that culminated in Edgar Rios knocking out Peter Kuppinger, the panel affirmed the district attorney’s office’s belief that it could not prove beyond a reasonable doubt Rios was guilty of assault.

“Although the video does not clearly establish that Rios acted in self-defense,” wrote Judge Jaclyn Casey Brown, “it is not clear that Rios initiated the physical confrontation by using or threatening the imminent use of unlawful physical force.”

Case: Kuppinger v. Larimer County District Attorney

Decided: June 8, 2023

Jurisdiction: Larimer County

Ruling: 3-0

Judges: Jaclyn Casey Brown (author)

Anthony J. Navarro

David H. Yun

Background: Criminal Enforcement Redundancy: Oversight of Decisions Not to Prosecute

Just before midnight on Feb. 26, 2021, Kuppinger arrived at a friend’s apartment building in the 500 block of W. Laurel St. in Fort Collins. The friend asked Kuppinger for assistance in removing multiple drunk people from his home.

Outside the apartment, the assembled group of men became hostile and a fight broke out. A cellphone video captured portions of the melee. At one point, Samuel Jenkins punched Kuppinger. Then Rios hit Kuppinger, causing him to lose consciousness and hit the floor. Kuppinger suffered a broken nose.

Police investigated the fight and Officer Jason Lang told Kuppinger, “based off of the circumstances that either everyone was going to receive a citation, which includes himself” or “nobody would be charged.” Lang also consulted with Deputy District Attorney Michael Deschenes, who allegedly said to offer Kuppinger the “option” of incurring a criminal charge for his own participation.

Kuppinger then filed a complaint against District Attorney Gordon McLaughlin’s office under Colorado’s compelled-prosecution law, seeking assault charges for Rios and Jenkins. Prosecutors responded that they had reviewed the evidence, debated the case internally and concluded they could not succeed at trial if they brought an assault case.

Among other things, the video did not clearly show who caused Kuppinger’s broken nose – but did reportedly capture Kuppinger himself acting belligerently.

“The fight broke out after the young men Mr. Kuppinger demands the Court prosecute left the party Mr. Kuppinger had sought to evict them from,” Deschenes wrote. Jenkins and Rios could have “a strong self-defense argument at trial.”

Jouard reviewed the video and determined that Jenkins appeared to be the initial combatant, but Kuppinger also voluntarily engaged with him. The district attorney’s office, he felt, acted reasonably in not charging Jenkins. As for Rios, Jouard believed self-defense did not apply and Rios had clearly thrown the punch that caused Kuppinger’s injury.

“It is troubling to the Court that a decision whether or not to charge Jenkins or Rios was apparently made, in part, upon consideration of whether the Plaintiff would ‘accept’ a charge of disorderly conduct,” Jouard wrote last year. “Further, deciding that it would be unethical to prosecute Rios without prosecuting Plaintiff was not a proper factor for the prosecution to consider.”

Jouard ordered the prosecution of Rios and appointed the Weld County District Attorney’s Office to pursue the case.

The Court of Appeals, however, overturned that directive. After watching the video themselves, the appellate judges agreed with the prosecution’s belief that it would be difficult to attribute Kuppinger’s broken nose to Rios.

Even though Jouard was troubled by the “option” police gave to Kuppinger – either accept a criminal charge along with the other fight participants or drop the case entirely – Brown explained that the district attorney’s office reached its decision independently of that ultimatum.

“The serious bodily injury at issue was Kuppinger’s broken nose. But based on the video, it is not clear who caused that injury,” she concluded.

The case is Kuppinger v. Larimer County District Attorney.